District Court New South Wales Medium Neutral Citation: Sesa v Workers Compensation Nominal Insurer (No 2) [2015] NSWDC 165 Hearing dates: 23 - 24 April 2015 Date of orders: 24 April 2015 Decision date: 24 April 2015 Jurisdiction: Civil Before: Neilson DCJ Decision: Time for the commencement of these proceedings extended to 22 September 2014 By consent, each party pay her or its own costs of this application Catchwords: WORKERS COMPENSATION – Work injury damages claim – Section 151D – Proceedings commenced out of time – Plaintiff pursued applications before the Workers Compensation Commission for determination of 15% or more whole person impairment – Applications put defendant on notice of plaintiff's intention to pursue work injury damages – Arguable cause of action – Serious personal injury – Defendant's assertion that business records of employer lost or destroyed not supported by any evidence – Justice of the cases requires leave be granted Legislation Cited: Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Howley v Principal Health Care Finance Pty Ltd [2014] NSWCA 447 Category: Procedural and other rulings Parties: Jovanka Sesa (Applicant/Plaintiff) Workers Compensation Nominal Insurer (Respondent/Defendant) Representation: Counsel: Mr J Dodd (Applicant/Plaintiff) Mr A Hourigan (Respondent/Defendant) Solicitors: NSW Compensation Lawyers (Applicant/Plaintiff) HWL Ebsworth Lawyers (Respondent/Defendant) File Number(s): 2014/278404 Publication restriction: No Judgment 1. HIS HONOUR: This is an application under s 151D of the Workers Compensation Act 1987 to extend the limitation period of three years until the commencement of the current proceedings on 22 September 2014 by the filing of the statement of claim. The three year limitation period provided by s 151D expired on 8 February 2010. The proceedings were commenced on 22 September 2014. The application has been made by motion on notice. 2. The process in which I have been involved yesterday and today felt more like a dental procedure than the hearing of an application in a court of law. There were a number of extractions practised. When I raised certain matters Mr Dodd, who appears for the plaintiff, extracted the relevant material from his solicitor's file and tendered it. The procedure also involved a number of realignments, which were lengthy procedures, because the way the material tendered was put before me was absurd and I needed to rearrange documentation so that I could deal adequately with matter. 3. There is no dispute that on 8 February 2007 the plaintiff sustained an injury arising out of and in the course of her employment. Paragraph 3 of the amended statement of claim, filed on 26 November 2014, is this: "On or about 8 February 2007, the plaintiff and another co-worker were cleaning a room in the hotel and had made up a folding bed. The bed was folded and secured in an upright position with a strap and fastener provided. The bed was then moved against a wall so that it was out of the way. As the plaintiff bent down to pick up a piece of paper on the floor that she noticed in front of the folded bed, the fastener holding the bed closed, unexpectedly opened and the bed fell and struck the plaintiff on the back of her neck." The plaintiff was thought to have been knocked unconscious. Perhaps she was just stunned An ambulance was called and she was taken to the emergency department at the Liverpool Hospital. 1. The plaintiff was employed by a company known as Parda Pty Ltd, which is alleged to have traded as the Sunnybrook Hotel & Convention Centre at Warwick Farm. That company was deregistered on 30 October 2011. The proceedings were commenced irregularly by naming the non-existent company as the defendant. Pursuant to orders made by the Judicial Registrar, the Workers Compensation Nominal Insurer has been substituted as the defendant. That entity was the insurer of the plaintiff's former employer pursuant to the provisions of the Workers Compensation Act 1987. The proceedings have been conducted on the assumption that the Hotel & Convention Centre, at 355 Hume Highway, Warwick Farm, still exists and has not, for example, been demolished. Whether Parda Pty Ltd owned the hotel or was only a lessee or only an operator of the hotel, the evidence does not disclose. 2. According to a report from the Liverpool Hospital, the plaintiff presented to the emergency department with pain in her neck. The diagnosis made was of a head injury, which was a closed head injury, with no loss of consciousness. The plaintiff gave a history of being struck on the head by a folding bed. The pain which she described was in the midline of the cervical spine and involved tingling in both hands. On examination, no neurological deficit was identified. Plain X-rays of the cervical spine showed some osteophytes at the C5-6 level, but no other abnormality. When the plaintiff arrived at the emergency department she was wearing a cervical collar, no doubt applied to her by the ambulance officers. On examination, the plaintiff was found to have a full range of neck movement, with no weakness and no paresthesia. The plaintiff was observed in the emergency department for a short while, a few hours, and was then told to go home. 3. On the following day she went to see her general practitioner, Dr Tomasevic. There is no material from Dr Tomasevic before me, either in the form of a report or clinical notes. I have been favoured with a large number of certificates, the majority of which are irrelevant. The doctor's "initial certificate" bears date 12 February 2007, which is not 9 February 2007 clearly. The history recorded in that certificate is that injury occurred when the plaintiff was struck on the head by a folding bed. The diagnosis given was "headaches and pain in the neck". A certificate of 15 February 2007 repeats that diagnosis, as do other certificates issued by Dr Tomasevic, at least as far as 11 May 2007. Dr Tomasevic referred the plaintiff to Dr Peter Giblin, an orthopaedic surgeon. 4. Dr Giblin saw the plaintiff on or before 30 April 2007, which is the date of Dr Giblin's first report. Dr Giblin reported the plaintiff's symptoms as neck pain and stiffness, headache, bilateral shoulder pain and discomfort going into both her arms. By the time Dr Giblin saw the plaintiff, a CT scan of her head had been performed, which was said to be normal, and plain X-rays of her cervical spine, those taken at Liverpool Hospital, showed minor degenerative changes at C5-6. Unfortunately, I do not have the second page of Dr Giblin's report of 30 April 2007. It clearly ordered further radiological investigations. They were an MRI scan of the cervical spine and an MRI arthrogram of the right shoulder. According to the radiologist, Dr Sachinwalla, at the C4-5 level there was a moderate left posterolateral disc protrusion encroaching on and compressing the left C5 nerve root within the proximal portion of its neural foramen. My reading of the MRI arthrogram of the right shoulder essentially indicates that there was no pathology present in the shoulder. 5. The plaintiff was seen again by Dr Giblin on 6 June 2007. It appears that Dr Giblin accepted the plaintiff had an obvious moderate left-sided disc protrusion at the C4-5 level encroaching on the left C5 nerve root. Dr Giblin expressed the view that the plaintiff's condition would remain stable for a while and that treatment would need to be conservative. Dr Giblin encouraged rehabilitation. According to the plaintiff's statement, she also complained to Dr Giblin about her back or low back, but there is no reference to any such complaint in either of Dr Giblin's reports. 6. The plaintiff said that she then commenced to see Dr Grahame Mahony and later started to attend upon Dr Mark Marinkovich at Petersham, but it is clear from Dr Mahony's first report, which bears date 12 July 2007, that the plaintiff was referred to him by Dr Marinkovich. So it appears that sometime after seeing Dr Giblin on 6 June 2007 and his prescribing physiotherapy the plaintiff changed general practitioners and sought care from another orthopaedic surgeon. 7. Dr Mahony first saw the plaintiff on 2 July 2007. According to the history obtained by Dr Mahony, the plaintiff injured not only her head and neck in the accident of 8 February 2007, but also injured her thoracic and lumbar spines as well. Dr Mahony diagnosed not only a disc lesion at the C4-5 level, compressing the left C5 nerve root, but also lesions at C3-4, C5-6 and C6-7. He recommended further investigations. The first was a total body bone scan, which was performed on 16 July 2007, and was reported by Dr Brittain as normal. Dr Mahony ordered an MRI scan of the thoracic spine and a MRI scan of the lumbar spine. My reading of the MRI scan of the thoracic spine indicates that no abnormality was detected. According to the radiologist who performed the MRI scan of the lumbar spine, there were small annular tears in the posterior of the L3-4 and L4-5 discs. Those two investigations were performed on 28 August 2007. 8. In the meantime the plaintiff was sent to see a psychologist, Nikola Tomic, who maintains in his stationery that he is "doctor", but I am not aware that he has the appropriate qualification to use such a title. It is clear that the plaintiff was referred to Mr Tomic by Dr Marinkovich. Mr Tomic first saw the plaintiff on 1 August 2007. Mr Tomic recorded complaints of pain in the neck, numbness in the arms, pain in the shoulders and frequent headaches with dizziness and blurred vision. He diagnosed an adjustment disorder with mixed anxiety and depressed mood, which was "chronic" as at 1 August 2007. In his first report Mr Tomic says this: "In my professional judgment, her condition is not likely to resolve through a spontaneous recovery process in the foreseeable future." In other words, the prognosis was not good. He recommended psychological treatment and said that the plaintiff would need 14 treatments, that is, 14 different sessions of psychological counselling. 1. The plaintiff returned to see Dr Mahony on 6 August 2007 and he advised the plaintiff to continue physiotherapy and again wanted to see her after the further investigations, which had not yet been conducted. 2. On or about 15 August 2007 the plaintiff saw Dr Matthew Giblin, also an orthopaedic surgeon, at the request of Dr Marinkovich. On examination, Dr Giblin noted that, when not examined, the plaintiff's movements were "quite free", but when he examined her they were "staccato". The provisional diagnosis and management plan proposed by Dr Matthew Giblin are these: "Whilst ever this lady has had a genuine injury, there does appear to be an enormous amount of anxiety and apprehension surrounding her situation. Although she has a genuine neck problem and although the symptoms in her left arm fit the disc lesion, I would be very concerned that any surgery would not give her the result that she anticipated. The other alternative of course is a steroid injection, but I am not too sure if she capable emotionally of taking that sort of intervention. The only thing I can really suggest is that she just continue with her conservative treatment for the time being and see if things will settle over a course of time." Why Dr Marinkovich referred his patient to two orthopaedic surgeons has not been explained. 1. The plaintiff was reviewed by Dr Grahame Mahony on 3 September 2007. Dr Mahony noted that the plaintiff had seen a psychologist and I can only assume that is a reference to Mr Tomic. Dr Mahony set out the findings of the further investigations that had been made, which included blood tests which, as far as I am aware, were irrelevant and the doctor then expressed the view that the plaintiff should continue to have physiotherapy and that her work capacity should be monitored by Dr Marinkovich and that he, Dr Mahony, would review her in six weeks for a further assessment. That was carried out on 24 October 2007. Dr Mahony expressed the view the plaintiff should stop physiotherapy and commence hydrotherapy, as well as remedial massage and acupuncture. 2. Chronologically, the next document is a further report from Mr Tomic. He points out that on 6 August 2007 he carried out an MMPI-201 test, which showed that the plaintiff had four out of eight clinical scales which were highly above the critical threshold that divides the psyche between normal and pathological. The four highly elevated scales were the hypochondria, depression, hysteria and psychaesthenia, which the explained as anxiety symptoms. Mr Tomic later said this: "…the treatment has not achieved complete recovery of Mrs Sesa. In my clinical judgment, she has not yet reached the pre-injury level of her emotional, social and recreational functioning. However, it is not justified to state that her previously diagnosed adjustment disorder is in partial remission." Mr Tomic then recommended six further treatment sessions to be conducted fortnightly. 1. The plaintiff saw Dr Mahony again on 28 November 2007. He again advised remedial massage, acupuncture, hydrotherapy and review by himself. 2. The next medical report is one generated by Dr Medhat Guirgis and bears date 4 December 2007. It is addressed not to Dr Marinkovich, but to Messrs Schreuder Partners, lawyers. Exhibit D-D is a letter from that firm to the plaintiff, bearing date 18 July 2007. It is clear that the plaintiff saw the solicitors on that day. The letter is divided into a number of parts with a number of headings. Under the heading "What happened?" is a history containing four subparagraphs. This matter is then said: "1.5 As soon as your condition has stabilised we will then be in a position to advise you further in regard to the preparation of a claim or lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 against [the insurer] in order to obtain compensation for your injuries and disabilities at that stage. 1.6 If a settlement or binding assessment is achieved in respect of the injuries suffered on 8 February 2007 greater than or equal to 15% Whole Person Impairment we will then provide further advice in respect of Work Injury Damages claim whereby, in addition to proving that you suffer from a significant work related injury, you are required to prove that the negligence of your employer caused your injuries." The next heading is "Will I win?". The second paragraph under that is this: "The workers compensation Legislation provides for a system whereby you need not prove fault on the part of any party to obtain compensation. In the event that an assessment of greater than or equal to 15% Whole Person Impairment is achieved and a work injuries damages claim is pursued you will be required to prove that the negligence of your employer caused your injury." The fourth heading is "Are there any time limits?" In addition to setting out the requirements of the Workplace Injury Management and Workers Compensation Act 1998, the following is also stated: " Any common law work injury damages proceedings must be made within three years from the date of the injury except with the leave of the Court: Section 151D(2) of the Workers Compensation Act 1987." The final heading is "What happens next?" and again refers to the need for the plaintiff's condition to stabilise so that a claim could be made for Whole Person Impairment. 1. It is clear that by 18 July 2007 the plaintiff was told of the three year limitation period for commencing an action for damages at common law, but also of the need for her condition to have stabilised and for there to be Whole Person Impairment (WPI) of at least 15%. It would appear that for that purpose the plaintiff was sent by Schreuder Partners to Dr Guirgis. Unlike nearly every other medical practitioner, Dr Guirgis thought the plaintiff's distribution of pain was in the C6 dermatome rather than the C5 dermatome. On p 8 of his report Dr Guirgis said this: "It is too early after the accident to allow for accurate assessment of permanent disabilities as she did not attain maximum medical improvement yet. I will be glad to address that question in due course. Tentatively [the doctor's emphasis] in accordance with the second edition of the WorkCover Guides for the Evaluation of Permanent Impairment, and the fifth edition of the AMA Guides to the Evaluation of Permanent Impairment, the patient's injuries, as discussed above, if assessed on the day of writing the report resulted in:" The doctor then said there was a 4% Whole Person Impairment because of injuries to the cervical spinal area, 4% Whole Person Impairment because of injuries to the thoracic spinal area, 4% Whole Person Impairment because of injuries to the lumbar spinal area and 3% Whole Person Impairment because of problems in the plaintiff's right shoulder joint. According to Dr Guirgis, they gave a combined Whole Person Impairment of 15%. 1. The plaintiff was seen again by Dr Grahame Mahony on 11 January 2008. He noted that the plaintiff had ceased seeing Mr Tomic, as the insurance company was not prepared to pay for further treatment by him. Dr Mahony recommended further psychological assessment, as well as remedial massage, acupuncture and hydrotherapy, as well as a review by himself. That review was carried on 26 March 2008 when, in essence, the doctor made the same recommendations and recommended that the next review be in a further two months. 2. Shortly thereafter the plaintiff was seen by Dr Guirgis again, but the report appears to have been prepared for Dr Marinkovich. In other words, Dr Guirgis had begun to take part in the treatment of the plaintiff. Why the plaintiff needed treatment from both Dr Mahony and Dr Guirgis is completely unexplained. Dr Guirgis thought the plaintiff should continue to have conservative treatment and prescribed certain medication. 3. The plaintiff was reviewed by Dr Grahame Mahony on 14 March 2008 and said exactly the same things as he said in his last few reports. His next review was on 28 June 2008 and again he recommended psychological consultations, remedial massage, acupuncture and on this occasion a physical exercise program. He also required a further review. 4. The next report before me is one from Mr Tomic, bearing date 8 July 2008. In it he refers to the cessation of his earlier treatment in November 2007. He records that the plaintiff told him that her old symptoms gradually returned when his treatment of the plaintiff stopped. On 1 July 2008 he prepared a further MMPI-201 investigation. Before recording what Mr Tomic said about that, part of his history needs to be considered. That history is this: "A recent event has particularly had an adverse impact on Mrs Sesa's emotional disorder. She has learnt from Dr Marinkovich that he received a DVD disk [sic], which demonstrated that she had been secretly pictured on the street and in her own backyard. She states that she currently is under an impression that she is secretly watched in any place at any time. She does not feel comfortable even in her bathroom or bedroom." Again, the MMPI-201 indicated four abnormal findings, that is, scales above the critical threshold. On this occasion they were hypochondria, depression, paranoia and psychaesthenia. In other words, the hysteria had been replaced with paranoia. On this occasion Mr Tomic recommended ten further treatment sessions to be conducted weekly. 1. The plaintiff appears to have seen Dr Guirgis again on 7 July 2008. He thought, in addition to her ongoing physical symptoms, the plaintiff had chronic pain/anxiety/depression. He thought the plaintiff was fit for suitable duties, with a graduated return to work program, starting with five hours per day for three days a week. He recommended that the plaintiff stop her gym training core strengthening exercises because they were making her symptoms worse. He encouraged walking, recommended psychological treatment and advised the plaintiff to continue otherwise with conservative treatment. 2. The plaintiff saw Dr Grahame Mahony again on either 27 or 29 August 2008. A report dated 5 September 2008 refers to examination on 29 August 2008 and a report of 15 September 2008 refers to a consultation on 27 August 2008. The inference to be drawn is that there was only the one assessment in late August 2008. In the first report Dr Mahony recommended the plaintiff continue psychological consultation and that she would benefit from remedial massage and acupuncture. The second report refers only to the need for remedial massage and acupuncture, as well as the inevitable review by him. 3. That review occurred on 29 September 2008. At that time the plaintiff was carrying out selective duties, including vacuuming and dusting for three hours a day, three days a week and the plaintiff had by that stage stopped her physiotherapy treatment, a recommendation, of course, of Dr Guirgis. Dr Mahony on this occasion recommended the plaintiff continue her psychological consultations, again recommended remedial massage and acupuncture and a further review. That took place on 10 November 2008. Again, he recommended psychological consultations, acupuncture, remedial massage a review by himself. That occurred on 23 January 2009. The doctor's recommendations then were exactly the same. 4. On 2 February 2009 the plaintiff was seen by Dr Guirgis. Some electrophysiological tests had been carried out in the meantime and they were reported as "negative", meaning, I assume, "normal". The doctor thought the plaintiff again could return to some light duty work and recommended conservative treatment and prescribed Lyrica 70 milligrams nocte. I understand that to be psychiatric medication. 5. On 27 March 2009 the plaintiff was seen by Dr Bruce Trevitt, an orthopaedic surgeon. Dr Trevitt diagnosed a soft tissue injury of the cervical spine, with an aggravation of underlying degenerative conditions. He did not, however, assess any impairment. 6. On 9 February 2009 Mr Tomic wrote a report to the insurer. In it he records that on 8 December 2008 the insurer agreed to the treatment that he had suggested on 5 July 2008. He then referred to his providing fortnightly counselling to the plaintiff. Mr Tomic said that, as at 18 February 2009, the plaintiff's psychiatric complaints had all improved. Mr Tomic expressed the view that the plaintiff was mentally able to accept responsibility performing her regular duties in her pre-injury position of a hotel cleaner for up to 20 hours per week. He again proposed six more counselling sessions by himself. Whether that was provided, the evidence does not disclose. 7. On 17 April 2009 the plaintiff was reviewed by Dr Mahony. He recommended the plaintiff recommence psychological consultations and suggested physiotherapy in the form of shortwave, ultrasound and cervical and lumbar traction, as well as remedial massage and acupuncture. Dr Mahony's next review was on 26 June 2009 and he made the same recommendations. 8. The plaintiff was reviewed by Dr Guirgis on 10 August 2008. He noted that the plaintiff's pain levels had increased since the plaintiff had stopped physiotherapy and he recommended that it be reintroduced. On 7 October 2009 Dr Mahony referred the plaintiff to a physiotherapist and told him that he had advised the plaintiff to continue both acupuncture and remedial massage, the reverse of the advice given on 7 July 2008. 9. The next report before me is from Dr Guirgis and bears date 7 December 2009. That report is addressed to the plaintiff's then solicitors, Schreuder Partners. On this occasion Dr Guirgis was of the view that the plaintiff had obtained maximum medical improvement. He thought her condition had been stable for the previous three months and was unlikely to change substantially by greater than 3% in the ensuing 12 months, with or without further medical treatment. He diagnosed post-traumatic mechanical derangement of the cervical area of the spine, post-traumatic mechanical derangement of the thoracic area of the spine, post-traumatic mechanical derangement of the lumbar area of the spine and post-traumatic symptoms in the right shoulder joint. He diagnosed 18% Whole Person Impairment. 10. Unfortunately, I do not know when Messrs Schreuder Partners received Dr Guirgis' report. It is common for medical practitioners these days to place on their reports, as the date of the report, the date of the examination, but often the report might take weeks and sometimes months to actually be typed and sent. Unfortunately, no one knows precisely when Messrs Schreuder Partners received Dr Guirgis' report. It was never date stamped, as was, once upon a time, normal, good solicitor's practice. 11. On 15 March 2010 Messrs Schreuder Partners made a claim on the insurer of the employer for lump sum compensation pursuant to s 66 and 67 of the Workers Compensation Act 1987. They served upon the insurer Dr Guirgis' reports of 4 December 2007, of 7 July 2008 and 10 August 2009, as well as that of 7 December 2009. It is clear that the insurer then arranged for examinations of the plaintiff. 12. I know, from other documents, that on 19 April 2010 Dr C Hollo, an occupational physician, saw the plaintiff for injury management consultation. Dr Hollo thought the plaintiff would benefit from occupational rehabilitation. Dr Hollo did not, however, assess impairment. Dr Hollo expressed the view that the plaintiff had a neck problem, with referred pain into her left arm, but no primary lower back problem. On 21 May 2010 Dr Ian Barrett, an orthopaedic surgeon, prepared a report. He was of the view the plaintiff had only suffered an injury to her cervical spine. A report, which contains a summary of Dr Barrett's report, continues thus: "He felt that she qualified in DRE category II on the basis of specific injury with non-verifiable radicular complaints and added 2% for ADL's…He felt that she also had pre-existing constitutional factors which would suggest the one-tenth reduction, but…He estimated DRE thoracic category I at 0% WPI…He felt that any upper extremity impairment was referred from the cervical spine…" 1. On 24 June 2010 the insurer of the employer made a counter offer to the plaintiff based on 6% WPI and nil under s 67. It was pointed out that if the plaintiff did not wish to accept the counter offer she could make an application to the Workers Compensation Commission. Such an application was in fact filed on 30 July 2010. No one has put before me the actual application. 2. In the meantime, on 28 June 2010, the plaintiff was reviewed by Dr Guirgis, as a treating doctor, and on that occasion he referred the plaintiff to Dr Gorman, a pain specialist, in regard to the management of the plaintiff's "signs of chronic pain/anxiety/depression/failure to cope presentation." 3. As a result of the application to the Commission, the Commission appointed Dr Gregory McGroder as an approved medical specialist (AMS). Dr McGroder examined the plaintiff on 8 October 2010. Eventually the Registrar of the Commission issued a certificate of determination, dated 16 November 2010. Dr McGroder diagnosed 7% WPI. In essence, Dr McGroder agreed with Dr Barrett. As far as the plaintiff's left shoulder was concerned, he thought that the plaintiff had sustained no primary shoulder injury. As far as the thoracic spine was concerned, Dr McGroder pointed out that there was no history of injury to it; there was no evidence of any dysmetria; there was no muscle guarding or spasm and there were no non-verifiable radicular complaints and no other features upon which any assessment of impairment could be made. As to the plaintiff's low back, the doctor said this: "With regard to the lumbar spine I feel that, according to table 15.3, that this lady qualifies in DRE category 1 at 0% WPI. This is because of no history of a specific injury, with no dysmetria, no muscle guarding or spasm noted on examination, and no non-verifiable radicular complaints in anatomical distribution. 1. At some stage Dr Mahony retired from practice. It would appear to have been at the end of 2010. The plaintiff was then referred to Dr David Manohar, a consulting rehabilitation physician. According to a subsequent history, Dr Manohar recommended that the plaintiff avoid any physical work. Whether the doctor did so or not, I do not know because I have not been given any report prepared by Dr Manohar. I do know that he referred the plaintiff for further radiological investigations and those were performed on 25 November 2010 by Dr Zita Gacs. They were a CT scan of the cervical and lumbar spines. 2. On 24 March 2011 the plaintiff saw Dr Michael Fearnside, a neurological surgeon, at the request of the plaintiff's solicitors. The solicitors were new solicitors, the plaintiff's current solicitors, who trade as "NSW Compensation Lawyers". I shall refer to them hereafter merely as "the plaintiff's solicitors". In particular the plaintiff has been mainly dealing with Mr Anthony Macri of that firm. Dr Fearnside made a number of significant findings on examination. He found that neurological examination of the upper limbs revealed an antalgic weakness of shoulder abduction and elbow flexion. He felt that the left deltoid reflex was absent with reinforcement. There was also reflex asymmetry and a sensory loss in the left C5 dermatome. Dr Fearnside agreed with Dr McGroder's assessment of the thoracic and lumbar spines. He diagnosed the most likely consequence of the injury of 8 February 2007 as to be a disc lesion at the C4-5 level. He believed that this was DRE category III, which results in 17% WPI. 3. Armed with that, the plaintiff's solicitors made further permanent impairment claim upon the insurer of the employer on 18 May 2011. Liability for that further claim was denied by the insurer on 1 June 2011. On 30 September 2011 the plaintiff's solicitors filed an application in the Workers Compensation Commission, indicating that there was a dispute about lump sum compensation, where liability was in dispute, and that there was a claim for lump compensation for pain and suffering. There were requests for referral for medical assessment by an AMS. Two reasons were given for that application. The first was for the assessment of lump sum compensation where the degree of permanent impairment was in dispute and the second was for "Threshold for work injury damages with the degree of Whole Person Impairment in dispute." That resulted in a further appointment of Dr McGroder as the AMS. The findings of Dr McGroder on his examination did not coincide with those of Dr Fearnside. The summary made by Dr McGroder is this: "Mrs Sesa's current presentation is one of multifactorial neck pain. There would be a mechanical element with a contribution from the facet joints and a discogenic contribution. There is referred pain to the left shoulder and arm, but no evidence of radiculopathy involving the upper extremities. The condition is a result of the work related incident on 8 February 2007. Once more significant pain behaviour was noted with grimacing, sighing and clutching various body parts. Examining sensation produced an inconsistent response and testing soft touch and pinprick with the eyes close produced a response of non-feeling when the areas were touched." He did not change his assessment from the earlier assessment of 7% WPI. 1. There was then an appeal to an Appeal Panel in relation to a medical dispute. The appeal panel was Arbitrator McManamey and Drs Ashwell and Crocker. The appeal was dismissed on 30 March 2012. Neither the plaintiff nor her solicitors were content with that order. 2. On this occasion the plaintiff's solicitors qualified Dr Brian Stephenson, an orthopaedic surgeon. Dr Stephenson saw the plaintiff on 4 July 2012 and wrote a report dated 12 July 2012. The doctor's report is lengthy, some ten pages, and comprehensive and, in my view, very well argued. He made the same assessment as had Dr Fearnside, making similar findings to Dr Fearnside on clinical examination. 3. On 25 July 2012 the plaintiff's solicitors filed a further application in the Workers Compensation Commission asking for the same matters to be assessed and determined, as they had in the application filed on 30 September 2011. I do know that the insurer then arranged for the plaintiff to be assessed by Dr Silva on 22 August 2012. A teleconference was then arranged with the WCC on 23 October 2012. On the same date the insurer had organised for the plaintiff to be seen by a Dr Perla and that consultation could be attended by the plaintiff because it did not clash with the teleconference, which was appointed at 2.30pm on that day. The teleconference was held and, as a result of that, the plaintiff withdrew her application to the Commission. The reason was purely technical. The plaintiff had not made a further claim for lump sum compensation on the insurer of the employer after obtaining Dr Stephenson's report and someone must have taken the technical point, either the insurer/employer or the arbitrator. 4. On the same day the plaintiff's solicitors prepared a notice of claim for lump compensation and served it on the insurer. That was disputed by the insurer by letter dated 21 December 2012. The plaintiff's solicitors then commenced the plaintiff's fourth application to the Commission, the third that they had been involved with. Again, the application involved a request for the appointment of an AMS to determine if the threshold for work injury damages had been met or exceeded. That application was filed on 1 February 2013. A teleconference was appointed for 15 November 2013. It is a long time between 14 February 2013 and 15 November 2013, the delay being caused, I am told, by a backlog of business in the WCC, due to then imminent changes to the workers compensation legislation. At the teleconference Dr Neil Berry was appointed as an AMS. The plaintiff saw Dr Berry on 17 December 2013. Dr Berry issued a medical assessment certificate dated 2 January 2014 that was received by the plaintiff's solicitors on 6 January 2014. That assessed a 17% WPI. That entitled the plaintiff to commence proceedings for work injury damages, provided the other statutory hurdles to the commencement of proceedings were complied with. 5. On 21 January 2014 the plaintiff's solicitors served upon the solicitors then acting for the employer a formal notice, allegedly pursuant to ss 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998. The document is comprehensive and comprises nine pages. There had been, after the certificate of Dr Berry, further negotiations between the solicitors, in order to try to settle the plaintiff's claim for compensation under s 67 for pain and suffering, anxiety and distress, resulting from the certified WPI. That was eventually settled after telephone conferences on 1 April 2014. 6. In the meantime the plaintiff's solicitors commenced preparing for a common law action. Counsel was briefed. Refresher medical examinations were arranged. Medical evidence from treating doctors was obtained. The plaintiff qualified a psychiatrist, Dr Stephen Allnutt, and an "expert report" was requested to be obtained in respect of liability. The expert report was received on 5 May 2014. On the same day the plaintiff's solicitor prepared a pre-filing statement of claim. The defendant then requested particulars and they were supplied. A statement from a witness to corroborate the plaintiff's evidence on the question of liability was obtained. Eventually the plaintiff's solicitors finalised the pre-filing statement of claim on 11 June 2014 and served it upon the defendant's solicitors. On 11 July 2014 an application for mediation to resolve the work injury damages claim and the pre-filing statement were filed in the WCC. Mr David Flynn was eventually appointed as a mediator and the mediation was scheduled for 14 September 2014. The mediation was unsuccessful. That led to the commencement of the current proceedings on 22 September 2014. 7. There is no argument that what was done by Mr Macri, on behalf of the plaintiff, was done with such diligence as one would expect and as relatively quickly as one could expect. The only glitch was the failure to make a formal claim for lump sum compensation after the plaintiff's solicitors received Dr Stephenson's report, which led to the discontinuation of one set of proceedings and the necessity of commencing another set of proceedings. 8. The problem with the current case is that I have nothing as to what was done by the plaintiff's former solicitors, Schreuder Partners. I know from Mr Macri's affidavit that his firm took instructions from the plaintiff on 11 October 2010, that is, two days after the plaintiff was examined by Dr McGroder as an AMS. Although it took some time for the Registrar of the WCC to prepare a certificate of determination, it would appear that the plaintiff at least became aware of the outcome of Dr McGroder's examination shortly thereafter and prompted her to change her solicitor. 9. The plaintiff's affidavit is exiguous. It refers to her instructing her present solicitors on or about 11 October 2010 and then it contains this paragraph: "I was unaware of my entitlement to claim workplace injury damages until after I consulted with my current solicitors and during that consultation I was informed that before I was entitled to make such a claim, I had to be assessed or the insurer to accept, that I suffered a 15% or greater [WPI]." However, the plaintiff had been told exactly that by Schreuder Partners on 18 July 2007. The fifth paragraph of the plaintiff's seven paragraph affidavit is this: "I believe that I first became entitled to bring these proceedings on or about 10 January 2014 following upon the issuing of the medical assessment certificate by Dr Neil Berry." The affidavit goes on to aver that the plaintiff left the carriage of the matter entirely in the hands of her solicitor and her belief that her solicitors had done all that they needed to do to bring these proceedings to the attention of the Court. 1. I have quoted extensively from the medical reports prior to the plaintiff going to see her current solicitors because an inference can be drawn from those reports. The plaintiff sought care from Dr Marinkovich. He referred her to Dr Grahame Mahony. Schreuder Partners qualified Dr Guirgis and he appears to have, after his first medico-legal consultation, taken up treatment of the plaintiff, as well as Dr Mahony. Each of those gentlemen did not tell the plaintiff at any stage that her condition had stabilised medically and kept offering her further conservative treatment. With the utmost respect to the two medical practitioners involved, it appears to me that the plaintiff got onto what I can describe as a "medical merry-go-round". She was in the hands of her doctors and expected them to do what they could to make her better. However, nothing made her better. Eventually Dr Guirgis made an assessment of WPI and then Dr Barrett did so for the insurer. 2. The plaintiff's first application to the WCC was unsuccessful. Dr Fearnside was then qualified by the plaintiff's present solicitors. He made the assessment eventually accepted by Dr Berry, as an AMS, and there was a further application to the WCC, but again it was unsuccessful. The plaintiff's solicitors then qualified Dr Stephenson and there were eventually further proceedings in the WCC, which led to the appointment of Dr Berry, as an AMS, and Dr Berry, it appears, accepted the findings, reasoning and opinions of Drs Fearnside and Stephenson. It is then that the plaintiff knew that she could safely commence common law proceedings and has done her best to do so. 3. There is no affidavit from the solicitors acting for the plaintiff prior to her going to her current solicitor. However, clearly there was an attempt to obtain a WPI assessment that exceeded the statutory threshold. Some doctors are reluctant to find a stabilisation of a patient's condition. That reluctance can sometimes be due to the fact that if a condition stabilises there may be no point in affording further treatment. I am not saying that this happened in this case, but it is a possibility. However, what I do accept is that the plaintiff was trying to pursue a claim for WPI to enable her to bring a common law action. 4. The plaintiff can have been under no illusion that she had an arguable cause of action at common law. For example, a statement was obtained from her on 4 January 2010. Two of the paragraphs of that statement are these: "7.1 On 8 February 2007 I was cleaning a room in the Sunnybrook Hotel & Convention Centre. It was about 12.30pm to 1pm. There were two double beds and a folding bed between these beds. I was with Susanna Malboga. We removed the two double beds apart and we started making the folding bed in the middle. This bed was constructed of a steel frame with wire mesh in the middle. It was a single bed. I do not know its weight. It was an old bed, but I don't know how old it was or how long it had been in the hotel. There were always problems with the locking mechanism. Quite often, when it was locked and folded up, it would spring open when we were making the bed and it would fall onto the ground. I had told the supervisors about the problems with this bed, but nothing was done about it. The supervisor said she had told the manager, Michael, but I do not know what his response was. There were 10-15 folding beds in the hotel. Most of them were faulty and had some problem. The two of us made the bed. The bed was folded and locked and placed against the wall between the two double beds. I don't recall who locked and folded it. I bent down to pick up a piece of paper on the floor between the two beds and the spring sprang open and the folding bed collapsed, falling on the back of my neck. I fell down on the floor. The next thing I recall is being on one of the beds. However, I don't recall how I got on the bed and assume I lost consciousness for a few moments. When I woke up…Mira and Rose were present." According to a claim for compensation made on 13 June 2007, the plaintiff's supervisors were Mira and Rosa. 1. The plaintiff's solicitors also obtained a statement from a lady, whose name appears to be correctly spelt, Suzana Malbasa. She confirms that she was working with the plaintiff at the time of the accident. She made up the folding bed. She confirms that the folding bed was very old and well used and that the strap which was used to keep it together did not work very well. 2. It is to the plaintiff's credit that she says she does not know whether she or Suzana made up the bed because, if she knew that Suzana had made up the bed, she could allege that the defendant was vicariously liable for the act of its servant, Suzana. Such an allegation is not made in the statement of claim at the present time. 3. There was also a statement obtained from Mirjana Zgela, who said that at the time of the plaintiff's accident she was in charge of the house cleaning. She confirms what the plaintiff said about the age and condition of the folding beds and of complaints having been made to management about their being old and the straps, which are used to lock them together, not working properly or at all. The inference to be drawn is that that lady is the "Mira" referred to in the plaintiff's claim for workers compensation. 4. There is certainly an arguable cause of action. It appears to me beyond little doubt the plaintiff sustained a cervical disc lesion at the C4-5 level. There is also a fair argument the plaintiff suffered in addition what used to be called "functional overlay" or is sometimes referred to as "abnormal illness behaviour" and sometimes referred as "chronic pain syndrome". 5. The inference to be drawn from what I have read is that the plaintiff is a relatively unsophisticated lady. She was born in Croatia, but is a Serb by race and speech. She had eight years of primary education, but only two years of secondary education in the former Yugoslavia. She migrated to Australia in 1999. In her native land she worked as a book binder. In Australia she has worked as a cleaner only. The plaintiff's reaction to her cervical spinal injury clearly indicates a lack of sophistication and perhaps a lack of insight. 6. However, what is also clear is the plaintiff was determined to obtain lump compensation sufficient to enable her to bring her common law action. There is, in my view, adequate explanation for any delay, although that is not strictly required by s 151D. The legal requirements as to what must be proved under s 151D are succinctly stated in Howley v Principal Health Care Finance Pty Ltd [2014] NSWCA 447 between [43] and [52] in the judgment of McColl JA, with whom Meagher and Barrett JJA concurred. Also the exiguity of the plaintiff's affidavit is covered by what was stated by her Honour at [54] to [55]. The material before me included a fairly comprehensive statement obtained from the plaintiff of what her evidence-in-chief is likely to be. 7. Another thing which has to be borne in mind, as the plaintiff has not only been paid lump sum compensation by the defendant, but also continues in receipt of weekly payments of compensation. She has been paid weekly payments of compensation, but for a few periods when she attempted to return to restricted duties, from 8 February 2007 until today, a period of over eight years. The insurer must have a fairly large estimate of the value of the plaintiff's claim. 8. An issue arises as to when the insurer was put on notice as to a possible claim for lump sum compensation, but it is clear from exhibit F-F, the applications to the WCC, made on 30 September 2011 and 25 July 2012, that the plaintiff wished to pursue a work injury damages claim. 9. The broad discretion to grant the leave which the plaintiff seeks involves a general question as to what is fair and just or what does the justice of the case require? The plaintiff has an arguable cause of action. She undoubtedly sustained a serious personal injury. The defendant has been on notice of her potential common law action for some time. Indeed, when one looks at the brief description given by the plaintiff in her claim for workers compensation, which bears date 13 June 2007, one would be prompted to believe the plaintiff could have a common law action. That description is this: "I was undertaking housekeeping duties and was struck in the head/neck by a folding bed." To be struck on the head or neck by a folding bed indicates that it fell. Beds should not fall over. The histories recorded by Dr Peter Giblin in his report of 30 April 2007 and by Dr Grahame Mahony in his first report of 12 July 2007 also suggest to anyone with some little knowledge of the law that the plaintiff would have an arguable cause of action. The same can be said of subsequent histories given by the plaintiff to medical practitioners. I cannot accept that the defendant, meaning the effective defendant, the currently named defendant insurer, was unaware that the plaintiff proposed to pursue a common law action if she could. 1. What the justice of the case requires must be evaluated by reference to the rationales of any limitation provision. Those rationales are set out by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. They are, firstly, that as time goes by relevant evidence is likely to be lost. The second is that is oppressive to a defendant to allow an action to be brought long after the circumstances that give rise to it have passed. The third is the desirability for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer made against them. As well, there is also the principle that it is in the public interest that disputes be settled as quickly as possible. 2. In a case such as this the public interest must be subordinated to the requirements of the legislation enacted by Parliament. A large amount of time has gone by because of the need to satisfy the requirements of the workers compensation legislation enacted by Parliament. The idea that the insurer could have arranged its affairs and used moneys that might be necessary to pay any damages claim for other purposes does not arise where the insurer has a continuing obligation to meet its obligations under the workers compensation legislation. An insurer must have always some estimate to cover the potential future liability for weekly payments of compensation. Since the only damages that can be recovered by the plaintiff are for economic loss, one would think that sometimes the one estimate would cover either damages or weekly payments to be made in the future. 3. Some evidence may have been lost, although the evidence does not point out any specific loss. However, I know that most of the evidence on the question of damages has been preserved by the ongoing workers' compensation claim and the litigious process pursued thus far in the WCC. No one could allege that they are not armed with adequate medical evidence to meet the plaintiff's claim. 4. The only prejudice pointed out by the defendant is the fact that the actual employer no longer exists. It also points out that the directors at the relevant time were John Owen Ireland and William Edward Baker Ireland. William Ireland ceased to be a director on 4 June 2010 and John Ireland ceased to be a director on 30 October 2011, the date on which the company was deregistered. A person who had been a director in the past was Joyce May Ireland, who became a director at the same time as John Ireland became a director on 11 May 1988. However, Mrs Joyce Ireland ceased to be director on 3 November 2002. That lady, if she still be alive, would be aged 98 years. One can understand why she may have ceased to be a director. Indeed, her ceasing to be a director may indicate the date of her death. An inference can be drawn that the "Ireland family" were the principals behind Parda Pty Ltd. An inference can be drawn that they gave up either the ownership, leasehold or management of the Sunnybrook Hotel & Convention Centre. However, there is no evidence that any records of the business have been lost or are destroyed. There is no evidence that the hotel, as I have earlier pointed out, has been demolished or substantially altered or changed. One might think that these old folding bed are no longer there, but that may assist the defendant rather than plaintiff. However, equally an inference could be drawn that they were got rid of because they were old and defective. The actual prejudice argued by the defendant is in fact merely speculation. There was no affidavit from the defendant's solicitor outlining what steps he or she had taken to obtain necessary evidence and what evidence has been lost or destroyed or can no longer be obtained. The current whereabouts of the Ireland brothers is unknown to the defendant, but the evidence put before me in that regard is old. I have affidavits of attempted service made on 2 December 2014 upon each of the "brothers", but no evidence as to any further attempts to contact those gentlemen or ascertain their whereabouts. 5. There is no property in any witness and the defendant could seek itself to interview the two witnesses whose statements have been obtained by the plaintiff. Equally, there is no evidence that any records of the hotel business have been destroyed or lost. 6. In my view the justice of the current case requires me to grant the leave sought by the plaintiff. Another way of looking at the requirements of s 151D is whether a fair trial can be held, despite the lapse of time. On reading what I have read, I am satisfied on the balance of probabilities that a fair trial can be held on both questions of liability and damage. 7. For those reasons I extend time for the commencement of these proceedings to 22 September 2014. The only costs order sought by the plaintiff is that each party pay her or its own costs. By consent, I order that each party pay her or its own costs of this application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2015